Subject: RE: Gardner's Question- BY Arnold Lutzker From: "John T. Mitchell" <jmitchell@xxxxxxxxxxxxxxxxxxx> Date: Fri, 13 Sep 2002 15:32:43 -0400 |
Arnold Lutzger wrote: <Sharing the file by email or other electronic arrangement with students or colleagues constitutes a public distribution of the work. Public distribution is an exclusive right of authors; however, if an exception applies, it may be done.> Perhaps I can be accused of placing semantics over substance, but the only right of "public distribution" is the right "to distribute copies or phonorecords . . . to the public by sale or other transfer of ownership . . . ." That's why, I maintain, when we say in common parlance that a copy was "distributed" by e-mail, what we are really saying is that a work was "reproduced" by e-mail. Ownership in or possession of the copy on the professor's computer is never transferred, thus the professor has not infringed the right or distribution of copies. Of course, as a practical matter, the outcome is the same in assessing fair use over the right of reproduction. John -----Original Message----- From: Olga Francois [mailto:ofrancois@xxxxxxxx] Sent: Friday, September 13, 2002 9:15 AM To: digital-copyright@xxxxxxxxxxxxxx Subject: RE: Gardner's Question- BY Arnold Lutzker Date: Thu, 12 Sep 2002 16:17:15 -0400 From: "Arnold Lutzker" <arnie@xxxxxxxxxxx> Organization: Lutzker & Lutzker LLP To: <digital-copyright@xxxxxxxxxxxxxx> References: 1 Here's a quick primer on the copying issue: 1. You must know what the database license provides. The terms of the license will control as a general matter. 2. From the technical copyright point of view, a copy of the work is made when it appears on professor's computer. Sharing the file by email or other electronic arrangement with students or colleagues constitutes a public distribution of the work. Public distribution is an exclusive right of authors; however, if an exception applies, it may be done. 3. The three key exceptions are a) fair use - sec. 107; b) library photocopying - sec. 108, c) educational public performance/display - sec. 110 (1 and 2). 4. Re fair use: the photocopying issue has been addressed in a few cases, most recently at U of Michigan (infringement found) and earlier in NYU (case settled on basis of infringement). In private sector, 2nd Circuit court in American Geophysical v. Texaco found infringement when article was copied from circulating journal. When copyright act was adopted in 1976, some compromises were reached on guidelines for educational photocopying, but your example probably goes beyond those guidelines. Nevertheless, the proposed use may be covered by fair use, but I'd need for details to offer an opinion. And the database license would have to be considered as part of the analysis and could void the fair use defense. (This latter point is at the heart of concern with UCITA.) 5. Re library photocopying: the ability to deliver involves one copy to a scholar for private use, not email multiple copies to class. Even though it wasn't part of your example, you probably can't get around obligations by sec. 108. 6. Re educational exceptions: this involves public performance and display in case of "face-to-face teaching" (sec. 110(1)) and transmissions of that performance to remote locations (sec. 110(2)). Incidental copying required for sec. 110(2) transmission is covered by ephemeral recording exception in sec. 112. None of this directly helps the proposed use. The TEACH Act, which amends sec. 110(2), if finally passed, would permit certain works to be electronically transmitted to enrolled students engaged in digital distance education. I've provided detailed discussion of TEACH Act in prior communications, but the bottom line is a) act is not enforce yet, b) all the myriad of requirements of the statue would have to be evaluated, and c) more details would be needed to give a yes or no. Hope this helps. Arnie Lutzker --------------------------------------------------------------------- You are subscribed as: jmitchell@xxxxxxxxxxxxxxxxxxx To unsubscribe, go to: http://lists.umuc.edu/unsub.php/digital-copyright/jmitchell@publicknowle dge.org or e-mail: <mailto:digital-copyright-unsubscribe-jmitchell=publicknowledge.org@list s.umuc.edu>
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